Monday, October 19, 2009

Patent Law 1984

PATENT LAW OF THE PEOPLE’S REPUBLIC OF CHINA(Adopted at the Fourth Meeting of the Standing Committee of the Sixth National People’s Congress and promulgated by order No. 11 of the President of the People’s Republic of China on March 12, 1984, and effective as of April 1, 1985)

CONTENTS
CHAPTER I GENERAL PROVISIONS
CHAPTER II CONDITIONS FOR THE GRANT OF PATENT RIGHTS
CHAPTER III APPLICATION FOR PATENTS
CHAPTER IV EXAMINATION AND APPROVAL OF PATENT APPLICATIONS
CHAPTER V TERM, TERMINATION AND INVALIDATION OF PATENT RIGHTS
CHAPTER VI COMPULSORY LICENCE FOR EXPLOITATION OF A PATENT
CHAPTER VII PROTECTION OF PATENT RIGHTS
CHAPTER VIII SUPPLEMENTARY PROVISIONS

CHAPTER I GENERAL PROVISIONS
Article 1. This Law is formulated in order to protect patent rights for invention-creations, encourage invention-creations and facilitate their popularization and application, promote the development of science and technology and meet the needs of the socialist modernization.

Article 2. For the purpose of this Law, " invention-creation " means inventions, utility models and designs.

Article 3. The Patent Office of the People’s Republic of China shall accept and examine patent applications and grant patent rights for invention-creations that conform to the provisions of this Law.

Article 4. If an invention-creation for which a patent is applied involves national security or other vital interests of the state that require secrecy, the matter shall be treated in accordance with the relevant provisions of the state.

Article 5. No patent right shall be granted for any invention-creation that violates the laws of the state, goes against social morals or is detrimental to the public interest.

Article 6. For a job-related invention-creation made by any person in execution of the tasks of the unit to which he belongs or by primarily using the material resources of the unit, the right to apply for a patent shall belong to the unit. For an invention-creation that is not job-related, the right to apply for a patent shall belong to the inventor or designer. After an application is approved, if it was filed by a unit owned by the whole people, the patent right shall be held by such unit; if it was filed by a collectively owned unit or an individual, the patent right shall be owned by such unit or individual. For a job-related invention-creation made by any staff member or worker of a foreign-owned enterprise or a Chinese-foreign equity joint venture within the territory of China, the right to apply for a patent shall belong to the enterprise or joint venture. For an invention-creation that is not job-related, the right to apply for a patent shall belong to the inventor or designer. After the application is approved, the patent right shall be owned by the enterprise, joint venture or individual that applied for it. The owners and holders of patent rights are uniformly referred to herein as " patentees. "

Article 7. No unit or individual may suppress the application of an inventor or designer for a patent in respect of a invention-creation that is not job-related.

Article 8. For an invention-creation made jointly by two or more units, or made by a unit in execution of a commission for research or design given to it by another unit, the right to apply for a patent shall belong, unless otherwise agreed upon, to the unit which made or the units which jointly made the invention-creation. After the application is approved, the patent right shall be owned or held by the unit or units that applied for it.

Article 9. If two or more applicants apply separately for a patent on the same invention-creation, the patent right shall be granted to the person who applied first.

Article 10. The right of patent application and the patent right itself may be assigned. If a unit owned by the whole people wishes to assign a right of patent application or a patent right, it must obtain the approval of the competent authority at the next higher level. If a Chinese unit or individual wishes to assign a right of patent application or a patent right to a foreigner, it or he must obtain the approval of the relevant competent department of the State Council. In cases where a right of patent application or a patent right is assigned, the parties must conclude a written contract, which shall come into force after it is registered with and publicly announced by the Patent Office.

Article 11. After the grant of the patent right for an invention or utility model, no unit or individual may, except as provided for in Article 14 of this Law, exploit the patent without the authorization of the patentee, that is, no unit or individual may manufacture, use or sell the patented product or use the patented process for production or business purposes. After the grant of the patent right for a design, no unit or individual may exploit the patent without the authorization of the patentee, that is, no entity or individual may manufacture or sell products incorporating the patented design for production or business purposes.

Article 12. Except as provided for in Article 14 of this Law, any unit or individual exploiting the patent of another must conclude a written licensing contract with the patentee and pay the patentee a fee for the exploitation of its patent. The licensee shall not have the right to authorize any unit or individual other than that referred to in the contract to exploit the patent.

Article 13. After the application for an invention patent has been publicly announced, the applicant may require the units or individuals exploiting the invention to pay an appropriate fee.

Article 14. The relevant competent departments of the State Council and the people’s governments of provinces, autonomous regions, and municipalities directly under the Central Government shall, in accordance with the state plan, have the power to permit designated units to exploit important invention-creation patents held by units owned by the whole people under the organizational system or jurisdiction of these departments and governments. The units exploiting such patents shall, in accordance with state provisions, pay an exploitation fee to the unit holding the patent right. If patents held by Chinese individuals or collectively owned units are of great significance to the interests of the state or the public and need to be applied on an extended scale, the matter shall be handled by the relevant competent department of the State Council according to the provisions of the preceding paragraph, after reporting to the State Council and obtaining its approval.

Article 15. The patentee shall have the right to affix a patent marking and indicate the patent number on the patented product or on the packaging of that product.

Article 16. The unit owning or holding the patent right on a job-related invention-creation shall reward the inventor or designer and shall, upon exploitation of the patented invention-creation, reward the inventor or designer in accordance with the scope of its application and the economic benefits derived.

Article 17. An inventor or designer shall have the right to name himself as such in the patent document.

Article 18. If a foreigner, foreign enterprise or other foreign organization having no regular residence or place of business in China files an application for a patent in China, the application shall be handled under this Law in accordance with any agreement concluded between the country to which the applicant belongs and China, or any international treaty to which both countries are parties, or on the basis of the principle of reciprocity.

Article 19. If a foreigner, foreign enterprise or other foreign organization having no regular residence or place of business in China applies for a patent or has other patent matters to attend to in China, he or it shall entrust a patent agency designated by the State Council of the People’s Republic of China to act on his or its behalf. If any Chinese unit or individual applies for a patent or has other patent matters to attend to in the country, it or he may entrust a patent agency to act on its or his behalf.

Article 20. If a Chinese unit or individual intends to file an application in a foreign country for a patent on an invention-creation completed in China, it or he shall first file an application for patent with the Patent Office and shall, with the sanction of the relevant competent department of the State Council, entrust a patent agency designated by the State Council to act on its or his behalf.

Article 21. Until the publication or public announcement of a patent application, staff members of the Patent Office and persons involved shall have the duty to keep the contents of the patent application confidential.

CHAPTER II CONDITIONS FOR THE GRANT OF PATENT RIGHTS
Article 22. Any invention or utility model for which a patent right may be granted must possess the characteristics of novelty, inventiveness and usefulness. " Novelty " means that, before the filing date of the application, no identical invention or utility model has been publicly disclosed in domestic or foreign publications or has been publicly used or made known to the public by any other means in the country, nor has any other person previously filed with the Patent Office an application describing an identical invention or utility model which was recorded in patent application documents published after the said date of filing. " Inventiveness " means that, compared with the technology existing before the filing date of the application, the invention has prominent and substantive distinguishing features and represents a marked improvement, or the utility model possesses substantive distinguishing features and represents an improvement. " Usefulness " means that the invention or utility model is manufacturable or usable and can produce positive results.

Article 23. Any design for which a patent right may be granted must not be identical with or similar to any design which, before the filing date of the application, has been publicly disclosed in domestic or foreign publications or has been publicly used within the country.

Article 24. Any invention-creation for which a patent is applied shall not lose its novelty if, within six months before the filing date of the application, one of the following events has occurred: (1) it was exhibited for the first time at an international exhibition sponsored or recognized by the Chinese Government; (2) it was made public for the first time at a prescribed academic or technical conference; or (3) it was disclosed by any person without the consent of the applicant.

Article 25. No patent right shall be granted for any of the following: (1) scientific discoveries; (2) rules and methods for mental activities; (3) methods for the diagnosis or treatment of diseases; (4) foods, beverages and condiments; (5) pharmaceutical products, and substances obtained by means of a chemical process; (6) animal and plant varieties; and (7) substances obtained by means of nuclear fission. For the processes used in the manufacturing of the products listed in items (4) to (6) of the preceding paragraph, a patent right may be granted in accordance with the provisions of this Law.

CHAPTER III APPLICATION FOR PATENTS
Article 26. When a patent application is filed for an invention or a utility model, relevant documents shall be submitted, including a written request, a specification and an abstract thereof, and a patent claim. The written request shall state the title of the invention or utility model, the name of the inventor or designer, the name and address of the applicant and other related matters. The specification shall describe the invention or utility model in a manner sufficiently clear and complete so that a person skilled in the relevant field of technology can accurately produce it; where necessary, drawings shall be appended. The abstract shall describe briefly the technical essentials of the invention or utility model. The patent claim shall, on the basis of the specification, state the scope of the patent protection requested.

Article 27. When a patent application is filed for a design, relevant documents shall be submitted, including a written request and drawings or photographs of the design; the product on which the design is to be used and the category of that product shall also be indicated.

Article 28. The date on which the Patent Office receives the patent application documents shall be the filing date of the application. If the application documents are sent by mail, the postmark date shall be the filing date of the application.

Article 29. If a foreign applicant applies for a patent in China within 12 months from the date on which it first filed an application in a foreign country for a patent on the same invention or utility model, or within six months from the date on which it first filed an application in a foreign country for a patent on the same design, it may enjoy a right of priority in accordance with any agreement concluded between the country to which it belongs and China, or any international treaty to which both countries are parties, or on the basis of the principle of mutual recognition of the right of priority, that is, the date on which the application was first filed in the foreign country shall be regarded as the filing date of the application. If one of the events listed in Article 24 of this Law has occurred before an applicant claims a right of priority, the period of the right of priority shall be counted from the date on which that event occurred.

Article 30. An applicant who claims a right of priority shall make a written declaration at the time of application, indicating the date of filing of the earlier application in a foreign country and the specific country in which that application was accepted, and it shall submit within three months copies of the application documents certified by the agency that accepted the application in the foreign country; if the applicant fails to make the written declaration or meet the time limit for submitting the documents, the claim to the right of priority shall be deemed not to have been made.

Article 31. Each patent application for an invention or a utility model should be limited to a single invention or utility model. Two or more inventions or utility models belonging to a single inventive concept may be submitted together in one application. Each patent application for a design should limited to a single design used on one type of product. Two or more designs used on products belonging to a single category and sold or used in sets may be submitted together in one application.

Article 32. An applicant may withdraw its patent application at any time before the patent right is granted.

Article 33. An applicant may amend its patent application documents, but the amendments may not go beyond the scope of what was recorded in the original specifications.

CHAPTER IV EXAMINATION AND APPROVAL OF PATENT APPLICATIONS
Article 34. If, after receiving an application for an invention patent, the Patent Office finds upon preliminary examination that the application conforms with the requirements of this Law, it shall publish the application within 18 months from its filing date. Upon the request of the applicant, the Patent Office may publish the application at an earlier date.

Article 35. Upon the applicant’s request for an invention patent made at any time within three years from the filing date of an application, the Patent Office may carry out substantive examination of that application. If, without any justified reason, the applicant fails to meet the time limit for requesting such substantive examination, the application shall be deemed to have been withdrawn. The Patent Office may of its own accord carry out substantive examination of an application for an invention patent when it deems it necessary.

Article 36. When requesting substantive examination of an invention patent application, the applicant shall furnish reference materials concerning the invention that were available prior to the filing date of the application. When an applicant requests substantive examination of his application for an invention patent after he has applied in a foreign country for a patent on the same invention, he shall furnish documents from any investigations made in the foreign country for the purpose of examining that application, or documents stating the results of that examination. If, without any justified reason, the said documents are not furnished, the application shall be deemed to have been withdrawn.

Article 37. If, after completing the substantive examination of an invention patent application, the Patent Office finds that the application does not conform with the provisions of this Law, it shall notify the applicant and ask it to state its observations or amend the application within a specified time limit. If, without any justified reason, the applicant fails to respond within the time limit, the application shall be deemed to have been withdrawn.

Article 38. If, after the applicant has stated its observations or made amendments, the Patent Office still finds that the invention patent application does not conform with the provisions of this Law, it shall reject the application.

Article 39. If, after completing the substantive examination of an invention patent application, the Patent Office finds no cause for rejection, it shall make a decision, publicly announce it and notify the applicant.

Article 40. If, after receiving an application for a utility model patent or a design patent, the Patent Office finds upon preliminary examination that the application conforms with the requirements of this Law, it shall not carry out substantive examination of the application but shall immediately make a public announcement and notify the applicant.

Article 41. Within three months from the date of the public announcement of a patent application, any person may, in accordance with the provisions of this Law, file with the Patent Office an opposition to that application. The Patent Office shall send a copy of the opposition to the applicant, and the applicant shall respond in writing within three months from the date of receiving the copy. If, without any justified reason, the applicant fails to submit a written response within the time limit, the application shall be deemed to have been withdrawn.

Article 42. If after examination the Patent Office finds that the opposition is justified, it shall make a decision to reject the application and shall notify the opponent and the applicant.

Article 43. The Patent Office shall set up a Patent Re-examination Board. If an applicant disagrees with the Patent Office’s decision to rejecting its application, it may, within three months from the date of receiving notification of the decision, request the Patent Re-examination Board to make a re-examination. The Patent Re-examination Board shall, after re-examination, make a decision and notify the applicant. If the applicant for an invention patent disagrees with the decision of the Patent Re-examination Board to reject its request for re-examination, it may, within three months from the date of receiving notification of the decision, file a suit in a people’s court. The decision of the Patent Re-examination Board on any re-examination requested by the applicant concerning a utility model or design shall be final.

Article 44. If there is no opposition to a patent application or, if after examination the opposition is found unjustified, the Patent Office shall make a decision to grant the patent right, issue the patent certificate and register and publicly announce the relevant matters.

CHAPTER V TERM, TERMINATION AND INVALIDATION OF PATENT RIGHTS
Article 45. The term of the patent right for inventions shall be 15 years, counted from the filing date of the application. The term of the patent right for utility models or designs shall be five years, counted from the filing date of the application. Before the expiration of the said term, the patentee may apply for an extension of three years. Where a patentee enjoys a right of priority, the term of the patent right shall be counted from the date on which the application was filed in China.

Article 46. The patentee shall pay an annual fee beginning with the year in which its patent right is granted.

Article 47. In either of the following cases, the patent right shall be terminated prior to the expiration of its term: (1) if the annual fee is not paid as prescribed; or (2) if the patentee renounces its patent right by a written declaration. The termination of a patent right shall be registered and publicly announced by the Patent Office.

Article 48. After the grant of a patent right, any unit or individual that considers the grant of the said patent right not in conformity with the provisions of this Law may request the Patent Re-examination Board to declare the patent right invalid.

Article 49. The Patent Re-examination Board shall examine the request for invalidation of a patent right, make a decision and notify the party who made the request and the patentee. Any decision declaring a patent right invalid shall be registered and publicly announced by the Patent Office. If any party disagrees with a decision of the Patent Re-examination Board either invalidating or upholding the patent right for an invention, it may, within three months after receiving notification of the decision, file a suit in a people’s court. The decision of the Patent Re-examination Board on a request to invalidate the patent right for a utility model or design shall be final.

Article 50. A patent right that has been invalidated shall be deemed to have been nonexistent from the outset.

CHAPTER VI COMPULSORY LICENCE FOR EXPLOITATION OF A PATENT
Article 51. The patentee itself shall have the obligation to manufacture the patented product or use the patented process in China, or it shall authorize other persons to manufacture the patented product or use the patented process in China.

Article 52. If, three years after the date of the grant of a patent right, the patentee of an invention or utility model has failed, without any justified reason, to fulfil the obligation set forth in Article 51 of this Law, the Patent Office may, upon the request of a unit possessing the means to exploit the invention or utility model, grant a compulsory licence to exploit the patent.

Article 53. If a patented invention or utility model is technically more advanced than another invention or utility model that was patented earlier and the exploitation of the later invention or utility model is dependent on the exploitation of the earlier invention or utility model, the Patent Office may, upon the application of the later patentee, grant a compulsory licence to exploit the earlier invention or utility model. If a compulsory licence has been granted in accordance with the provisions of preceding paragraph, the Patent Office may, upon the application of the earlier patentee, also grant a compulsory licence to exploit the later invention or utility model.

Article 54. Any unit or individual applying for a compulsory licence in accordance with the provisions of this Law shall furnish proof that it or he has not been able to conclude a licensing contract on reasonable terms with the patentee.

Article 55. Any decision made by the Patent Office granting a compulsory licence shall be registered and publicly announced.

Article 56. Any unit or individual that is granted a compulsory licence shall not have an exclusive right to exploit the patent in question, nor shall it or he have the right to authorize exploitation of the patent by others.

Article 57. Any unit or individual that is granted a compulsory licence shall pay the patentee a reasonable exploitation fee. The amount of the fee shall be decided by both parties through consultation. If the parties fail to reach an agreement, the Patent Office shall make a ruling.

Article 58. If a patentee disagrees with the decision of the Patent Office granting a compulsory licence or with its ruling regarding the exploitation fee, it may, within three months from receiving notification of the decision, file a suit in a people’s court.

CHAPTER VII PROTECTION OF PATENT RIGHTS
Article 59. The scope of protection in the patent right for an invention or a utility model shall be determined by the contents of the patent claim. The specification and appended drawings may be used to interpret the patent claim. The scope of protection in the patent right for a design shall be determined by the product incorporating the patented design as shown in the drawings or photographs.

Article 60. If any acts of infringement arise from the exploitation of a patent without the authorization of the patentee, the patentee or interested parties may request the patent administrative authorities to handle the matter or may directly file a suit in a people’s court. In handling the matter, the patent administrative authorities shall have the power to order the infringer to stop the acts of infringement and compensate for the losses. Any party dissatisfied with the order may, within three months from receiving notification of it, file a suit in a people’ shall have the power to order the infringer to stop the acts of infringement and compensate for the losses. Any party dissatisfied with the order may, within three months from receiving notification of it, file a suit in a people’s court. If, at the expiration of such period, the party has neither filed a suit nor complied with the order, the patent administrative authorities may approach the people’s court for compulsory enforcement of the order. When an infringement dispute arises, if the patented invention is a manufacturing process for a product, the unit or individual manufacturing the similar product shall furnish proof of its manufacturing process.

Article 61. The period of limitation for filing a suit concerning the infringement of a patent right shall be two years, counted from the day on which the patentee or the interested parties become aware or should become aware of the act of infringement.

Article 62. None of the following shall be deemed an infringement of a patent right: (1) use or sale of a patented product after it has been manufactured by the patentee or with the authorization of the patentee and subsequently sold; (2) use or sale of a patented product without knowledge of it having been manufactured and sold without the authorization of the patentee; (3) continued manufacture or use of a similar product, only within its original scope, by a party that, prior to the date of application for the patent in question, had already manufactured that similar product, used the same process or made the necessary preparations for such manufacture or use; (4) use of the patent in question by a foreign means of transport which temporarily passes through the territorial land, water or airspace of China for its own needs, in its devices and installations, in accordance with any agreement concluded between China and the country to which the foreign means of transport belongs, or any international treaty to which both countries are parties, or on the basis of the principle of reciprocity; or (5) use of the patent in question solely for the purposes of scientific research and experimentation.

Article 63. Whoever counterfeits the patent of another person shall be dealt with in accordance with Article 60 of this Law. If the circumstances are serious, the criminal liability of the person directly responsible shall be investigated by applying mutatis mutandis Article 127 of the Criminal Law.

Article 64. Whoever, in violation of the provisions of Article 20 of this Law, files in a foreign country an application for a patent without authorization, divulging an important state secret, shall be given administrative sanctions by the unit to which he belongs or by the competent authority at the next higher level. If the circumstances of the case are serious, his criminal liability shall be investigated in accordance with the law.

Article 65. Whoever usurps the right of an inventor or designer to apply for a patent on an invention-creation that is not job-related, or usurps any other right or interest of an inventor or designer prescribed by this Law, shall be given administrative sanctions by the unit to which he belongs or by the competent authority at the next higher level.

Article 66. If any staff member of the Patent Office or any of the relevant state functionaries engages in malpractices for the benefit of friends, he shall be given administrative sanctions by the Patent Office or the competent authority concerned. If the circumstances are serious, criminal liability shall be investigated by applying mutatis mutandis Article 188 of the Criminal Law.

CHAPTER VIII SUPPLEMENTARY PROVISIONS
Article 67. For patent applications filed with the Patent Office and other procedures carried out there, fees shall be paid as prescribed.

Article 68. Rules for the implementation of this Law shall be formulated by the Patent Office and shall be submitted to the State Council for approval before they are put into effect.

Article 69. This Law shall go into effect on April 1, 1985.